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1893

Parol Contracts for the Sale of LandJay TerryCornell Law School

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Recommended CitationTerry, Jay, "Parol Contracts for the Sale of Land" (1893). Historical Theses and Dissertations Collection. Paper 211.

T HE S I S.

PAROL CONTRACTS FOR THE SALE OF LAND.

-By-

JAY TERRY.

Cornell University School of Law

1893.

C ON T E N T S.

Pa-,r .

History and Comparison ------------------ I

Mutual Agreement --------------------- 7

Executory and Executed Contracts ---------- 7

Common Law Rule -------------------------- 10

Written Evidence Required ----------------- 13

What Constitutes an Interest in Land ------ 14

Licenses Divided ------------------------ 16

Licenses Distinguished from Grants -------- 18

Licenses Revocable ----------------------- 20

License Coupled with Interest ------------- 22

Interests Within the Statute of Frauds ---- 23

Products of the Soil --------------------- 24

Exception to General Rule ----------------- 26

Particular and Limited Interests ---------- 27

Mineral Products ------------------------- 28

Part Performance ------------------------- 29

PAROL CONTRACTS FOR THE SALE OF LAND.

History and Comparison.

The terms 'buying and selling land' when strictly applied

relate only to estates in fee. Accordingly, if a tenant

for life or years transfers his estate in property absolutely,

he is spoken of as having made an assignment, and not a sale

of that interest. This distinct use of the terms, in speak-

ing of estates in fee and those for a less period, has evi-

dently grown out of the allodial system of tenures adopted

in this country ; while in England it has probably resulted

from the enactment of the Statute Quia Emptores, 18 Edw. I.

In both countries, then, it will be seen that the term *sale'

has been strictly employed in relation to transfers of es-

tates in fee ; and, though there is apparently little reason

for the partiality, still it application has been thus spe-

cifically limited.

By the ancient or fictitious doctrine, which originated

in the usages of feudal times, the tenant of an estate in fee

is claimed to hold his estate as party of the second part in

2

a grant executed, and to which the state is party of the first

part. But, by the terms of this grant, the grantee is not

made liable.to payment, and, as authoritatively admitted,

could not be, either as an express condition of the grant, or

by any collateral agreement, even though the grantor be a

sovereign state. Hence has arisen the custom of designating

that class of tenants 'land owners', and their agreements to

transfer their rights in the property as buying and selling

land. There is good reason to believe, however, that had

the feudal system, with the ordinary incidents peculiar to

it, been generally adopted here, the terms 'buying and sell-

ing' could not be properly used in speaking of agreements to

transfer land. An agreement by a tenant to transfer his

land, in that case, would have been known as an agreement to

assign his claim, and not to "sell' it. The result thus

produced is plainly the product of commerce, and not of the

feudal law.

The change of terminology has, of course, been attended

with some evil results. The tendency during this renovating

period has been to lose sight of the fundamental features of

real-property law, since those whom we designate as land

owners are in reality only parties of the second part in

grants from the state. The persons may be the original or

subsequent holders ; that is, they may have it directly from

the state, or as grantees, assignees, or devisees of the

original possessor. We forget also that the rights of these

parties are merely contract rights of possession ; that

individuals cannot own land as they own personal property,

and that absolute ownership of it is in the state where the

land lies, and can be nowhere else.

The great writers of feudal history have rightly taught

that occupants under the feudal tenure system held claim to

estates in fee, as in those for life or years, to a right of

possession only, and thus conferred by the instrument effect-

ing it. This contract right of possession secured by the

instrument was the only interest the tenant had in the land

which was the subject of the transaction between them. By the

early feudal law the tenant was not permitted to sell or

assign this contract interest which he had in the property.

It was his to possess for life only, at first ; but later

this restriction was withdrawn to such an extent as would

allow his heirs to succeed to the interest, under a ficti-

tious presumption that they were equal parties with himself

to the lease. Finally, however, as the tenant's right to

alienate became less and less restricted and he was allowed

to sell or assign his interest, the individual right of

possession grew to appear more like an absolute right in the

property. But still there were many incidents under the

feudal tenure system which continually reminded the tenant of

the fact that his interest was only leasehold, and of his

relation to the lessor or reversioner. Further, in changing

from the ancient feudal to the modern allodial system, the

incidents which were before calculated to remind one of the

leasehold character of his tenancy were now so entirely swept

away that the tenant came to be regarded as the absolute

owner of the land, without considering how he became such,

or the impracticability of the position from the very nature

of things.

In place, then, of the definite idea laid down by the

feudal law as to what was the right of the tenant in fee, the

minds of the modern investigators are often left unsatisfied

until this distinction can be seen., To understand the

practicable operations instituted in a sale of land, it is

necessary to have correct ideas as to what interest an indi-

vidual can have or hold that he may sell, and what constitutes

the title which is to be sold. In an estate in fee the tenant

has precisely the same sort of interest which he may sell as

the owner of a less estate, it differing only in what is

called the quantity of the estate, so that he agrees to sell

and perfect the title in the same manner. The form of the

agreement and the ultimate expression may or may not be dif-

ferent, but the operation and effect will be practically the

same., According then to the established idea of property

right, this tenant, as party of the second part to a grant

from the state, voluntarily agrees to sell and assign his

grant or contract right in the premises. This must be the

subject of the transaction, as he has nothing else which he

may sell, except his contract right to possess and enjoy the

land to the exclusion of all others. But as the contract

right is not attended with obligations of rent or service on

the part of the tenant, or ceremony of fealty in token of

his dependence, in such grant from the state, its authority

is not mentioned or recognized as a necessary part of the

agreement to convey. The original owner then sells the

land, as though he had the absolute property independent of

all grants or contracts, and the grant of the state, so far

as his subsequent grantees, &c., are concerned in later

conveyances made by them, is left out of sight, and usually

6

unknown or thought of by them. It will therefore be seen that

by this method of operating all circumlocution is avoided,

and the result thus obtained is the same, to the extent of the

land described, as though the grant of the state was spe-

cifically recited in the instrument.

These fictitious grants of the state are, as a matter of

course, divided among the different owners according to the

area of the land described, each being a party of the second

part to the extent of the land which he has acquired. But as

no rents or profits are or can be reserved by the state as a

condition of this holding, no circumstances are presented

which tend to remind the parties that any such thing as tenure

exists and forms the foundation for the title they claim under.

The laws regulating the negotiations between the parties

to these transactions and their relation to each other is

known as the law of vendor and vendee. The popular significa-

tion of the terms 'sale of land" seems to be generally limited

to transfers of estates in fee, but this does not affect the

legal view of the subject to which they properly apply, and

which must necessarily be otherwise. It may be accepted,

then, that the terms "sale of land' embraced two distinct

points for consideration, viz. ; the land which is the sub-

ject of the conveyance, and the contract which establishes a

right in the property.

Mutua AgYreement.

It is evident at the first sight that every voluntary

alienation of land or an agreement therein must necessarily

be preceded by an agreement of such extent as will completely

effectuate the intention of the parties. If this mutual

purpose is to be immediately carried out or executed, no

particular legal form is required that the intended result

may be acquired. But when any time is to intervene between

the making and the complete fulfilment of the agreement, it

is necessary that it be put in particular legal form in order

that it may be effective and binding upon the parties thereto.

Executory and Executed Contracts.

A distinction is this line is usually quite evident and

derterminable, so much so, that there may be easily said, and

perhaps uselessly, that no conflicts exist in the decisions.

The question which should here receive some attention is,

whether an executed contract can be considered a contract at

all. The point first received serious attention in the case

of Fletcher v. Peck, (6 Cranch,) which arose from an act of

the Georgia Legislature, which had attempted to avoid a

grant of land made by it to a citizen of that State. This

claim of right was contended by the grantee, on the ground

that the act was contrary to the provision of the Constitution

which forbade the States to enact laws impairing the obliga-

tions of contracts. The judgment in this case, which was

probably one of the most important rendered in the early

history of the Supreme Court, so firmly and satisfactorily

decided that the act was within the legislation prohibited by

the Constitution, that the position taken has ever since been

received as the correct one and without question.

In returning to the objective point under this head for

the purpose of considering a method of distinguishing execu-

tory from executed contracts, it will be seen that a satisfac-

tory result may be best drawn out by asking the question :

Has the contracting party the same title or interest in the

property which he had before making the contract ? If the

question is answered in the affirmative, the contract is

executory ; if in the negative, it is executed. The question

might also be, as to whether the party into whose possession

9

the land was to go had acquired other and greater interest in

it than he previously held ; and if so asked, is entitled to

a result analogous to that in the previous question. In

examining these questions, however, the transfers of interest

must be strictly limited to legal interests, as they in no

way apply to those of an equitable nature.

After the above division of the main subject into

executory and executed contracts, each of these are again

subdivided into two great classes : executory, into those

which by reason of some informality or irregularity (which

is a condition precedent) cannot be treated otherwise, and

those which must be so treated in order to carry out the

intention of the parties ; and executed, where one or the

other of the parties has fully performed his part, and the

so-called leaseholds or estates are less than a freehold.

The latter estate, however, as regards the lessor and lessee,

is rather executory, but as to all other persons the lessee

has a vested right and estate in the property. This may also

be strengthened by the view under the modern system, since

here the above distinction is not made, and all persons claim-

ing as lessees from the state or subsequent holders hold a

vested right in the property,.

Common Law Rule.

Since the vote of Parliament adopting the Statute of

Frauds, in the reign of Charles II, was almost a contemporary

of the legislation allowing the tenant of an estate in fee to

dispose of his property, there are very few cases reported,

either of great or little importance, which examined and

propounded the law on this subject as it existed just prior to

the enactment of the now famous statute.

Immediately following the enactment of the Statute of

Frauds in England in 1676, the purpose of which, as laid

down in its preamble, was to prevent the many fradulent

practices in respect to land contracts, which were generally

furthered by perjury and subordination thereof, most of the

then colonies, but later members of the United States, first ac

cepted and established this English idea almost literallyi

The modern statutes on this subject, or the revisions of the

original in the different States, have substantially the

effect of its predecessor, out as experience has taught, and

the requirements of life presented the various difficulties

of the situation, most of these States have modified and

varied its provisions to meet the apparent requirements.

11

The substance and main feature of the statute was to require

a writing of the facts connected with an agreement for the

transfer of land, as the only sufficient evidence of contract

relations existing, and the only evidence which could -- with

one exception -- secure the injured party the aid of a court

of justice in a suit for specific performance.

Some fe; of the early States, mong them Pennsylvania,

adopted only part of the English statute, excluding that in

relation to land contracts ; and the courts of that State

held, in the precedent established in Ewing v. Tees-, (1 Bin-

ney -- Pa.) that the rules of common law were alone applica-

ble, and the 4th section of the English statute was unrecog-

nized and of no effect. Under the common law rules, however,

the purchaser could always recover money or legal damages,

where he had paid something in execution of his part of the

contract. But in many cases this relief was entirely inade-

quate in balancing the injury sustained by the active and

abiding party, and as a vested right was necessary to the

securing of equitable relief, the court having jurisdiction

of this matter could only be brought to bear where the grantee

had been put in possession under the contract and thereupon

performed acts of such a permanent and personal character that

12

it must work a direct and inequitable fraud upon the party in

possession if the promisor were allowed to reject and

cancel the contract at his own option. So, therefore, as

the court of equity had deemed it its duty to co-operate to

prevent this fradulent injury before the enactment of the

statute, much more could it be deemed justified in allowing

the honest work of the possessor to stand as sufficient

evidence of the actual contract relations existing after its

passage. By so doing, it would also prevent the use of the

statute which would otherwise further the fradulent actions.

But in all these cases it must be remembered that possession

under the contract must be open and with the consent or

acquiescence of the vendor.

This particular relief or remedy is given in respect to

contracts for realty as distinguished from personalty, in

that this class of property is quite liable to have peculiar

or special value, which the purchaser alone recognizes, and

which cannot be duplicated, or other facts affecting value

which a jury would not and could not account for in giving

damages. It is therefore evident that under no circumstances

will a court decree specific performance where a payment of

money is the only act of part performance, as in this case a

court of law can always give adequate relief.

Written Evidence Required,.

The Statute of Frauds, in its application to contracts

for the transfer of interests in land, embodies as its only

and great feature the requirement that such contracts must be

evidenced by a writing and shall be signed by the party, or

his agent lawfully authorized by a writing. This writing,

more explicitedly considered, must contain all the main facts

on which the contract is based or operates. It need not,

however, be in the form of a theme, but may as well be in the

shape of an account when such plan fairly expresses the agree-

ment. The requirement before mentioned is not, as may be at

first supposed, such as to regulate the fact of what is or

shall hereafter be considered a contract ; but states that

those same relations, when subsequently created between

parties, shall not have legal force and effect unless the

positions of the parties to the contract can be shown and

proved by a writing drawn at its creation and signed by the

party to be charged, or his attorney authorized by a writing.

The purpose of this statute, as its wording plainly

expounds, was to protect the parties from mis-statements,

whether intentional, or innocently made as the result of

forgetfulness, and from false testimony of witnesses brought

in to prove the terms of the contract. It seems that at the

time of the adoption of this statute in England the aliena-

tion of land had become quite general, and as agreement, and

that by parol, was alone customary, they became the subject

of continuous litigation, implanted with perjury.

What Constitutes an Interest in Land.

This question is one which has been often before the

courts of both England and the several States of this country,

and though the decisions on this point are not entirely in

harmony, still, as the conflict is more apparent than real,

it is not of sufficient importance to require special atten-

tion. The principal questions to be here investigated are

in respect to the two subjects, License and Grant.

A license, to be well defined, is a privilege to act in

respect to the land of another in such a way as not to affect

the title of the owner, yet to give the licensee such

immunities as will excuse him from liability in an action

of trespass. A license gives the privilege and time for

doing an express act, but if not, must allow a reasonable

time, so that the licensee may not suffer injury thereby.

The distinction between grant and license, then, is that

the second party to the contract for license gets merely an

excuse for trespass, which cannot have legal and binding

force until completed, and which may be revoked by the party

of the first part at any time without the consent of the

licensee, except where a reasonable or definite period was

agreed upon, and revocation before the end of this period

might work great injury upon the licensee. But as to the

latter class, in respect to a definite period, this regula-

tion cannot be said unhesitatingly to apply, since there is

then but an apparent difference between it and a grant, and

upon which the decisions of the courts can hardly be spoken

of as harmonious. Grants give either a right of possession

or an incorporeal right, while licenses give neither. They

also require consideration to make them effective, if execu-

tory, but this is not at all an essential to the creation of

a license.

The true method, however, to determine the existing

relation is that comnonly employed in expounding all con-

tracts. In doing this, the question to be asked is : What

have they expressed, and how have they expressed their in-

tentions ? If it be only a license, it may be created by

parol and without consideration, as it is under all circum-

stances independent of the Statute of Frauds.

Licenses Divided.

Licenses have been divided in four classes, viz. :

(1) Those which cannot have other effect, being parol

(2) those which must so operate because of the character of

the interest involved ; (3) those in which it is their

express intention ; and (4) those in which it is the implied

intention of the parties.

Those transactions which could only operate as licenses

by reason of informality, necessarily take this position from

the wording of the statute, which requires written evidence

to effect, and without which the courts could only give it

the force and effect of a license. The distinction, then,

is not in respect to the character of the land under consider-

ation, but only the manner in which the interest was claimed.

In other words, the status depended on whether the contract

was in writing so as to create a grant, or only by parol so

as to operate as a license. As to the class dependent upon

the species of interest involved, there has been little

conflict in the decisions. This division does not base its

reason for distinction upon the intention of the parties, but,

like the previous one, upon a less prominent point. The

character of the interest which must be considered in deter-

mining between the parties in order to place them under the

right head is of different kinds ; the one which may readily

come within the term "license' is restricted to those claims

in which neither the land, an interest therein, nor its

occupation is the subject of the agreement, but is really

only a collateral thereto. For example, an agreement to go

upon the land of another for the purpose of plowing, etc.

The agreement though destroying the effect of a suit for

trespass, also allows the party to go upon the land for the

particular purpose, but does not in any way give such an

interest as is regulated by the Statute of Frauds. This

permission to enter and act in regard to lands of another

without acquiring any interest therein, is only a license,

and this is so whether the agreement had been oral or reduced

to writing. These licenses may also be implied from the

18

apparent holding out of the premises for public use, but may

as well be upon similar agreement for consideration, as other-

wise, and must be dependent upon the custom of those previous-

ly occupying it. The latter method of holding or occupying

property may be such as would at first have given a cause of

action in trespass, but may finally transform itself into an

absolute right and title, if there be an open and adverse

possession for a sufficient period to satisfy the Statute of

Limitations.

licenses Distinguished from Grants.

A license is a mere personal privilege or excuse from

doing an act with relation to the real estate of another which

if unauthorized would give the licensor or owner a cause of

action against the licensee in trespass. And having also

the quality of personality, the claim which the licensee holds

in the property can in no way be effective if transferred, so

that by no method, whether by assignment or gift, can the

transferee get any claim to privileges which might previously

have been enjoyed by his grantee. The claim differs from a

grant, as before mentioned, in that no consideration is

necessary to make it effective, and the mutual obligation

which is always found in cases of grant is not a necessary

factor in the creation of a license. This relation between

the parties is often established, as we shall see hereafter,

where the circumstances are such that though the parties may

have intended a grant to result, the law gives it only the

effect of a license.

This distinction, though quite apparent, seems to have

been somewhat overlooked by the earlier decisions, thereby

causing, as must be expected, an almost indiscriminate use of

the words "grant' and "license.' The view thus taken neces-

sarily produced a proportionate effect upon the certainty

with which they applied the statute to various cases as they

arose. It might here be effectual then, if attention be

drawn to the fact that the statute applies only to those

cases where the parties intended to transfer an absolute and

transferable right in the property ; that is, such a right

as would necessarily restrict the powers of the owner and

increase those of the grantee in the particular property.

The title of the licensor, however, is not diminished or

the licensee's increasedland as the privilege to act may be

revoked at any time at the option of the owner, the claim of

the licensee can only be effectual where the act has been

completed.

Licenses Revocable.

The expenditure of money does not as a general thing

make a license in respect to which the payment was made

irrevocable ; except, perhaps, where the privilege was

impliedly limited to a particular period of time. In the

latter case the extent of time allowed is usually what would

be presumed to be a fair and reasonable period in which to

carry out the work the licensee had in view, and that upon

which the owner had figured in allowing it, in order that his

on rights might be protected.

Next, it should also be noted that there has been a

noticeable lack of harmony in the decisions upon the point of

giving the effect of licenses to particular arrangements for

the use of another's land for an express period and upon

consideration, without it being effected, as the ordinary

agreements for an interest in land, by the requirements of

the Statute of Frauds. By this unsatisfactory state of

things, parties may or may not come within the statute, as

the particular court may decide.

To revoke a license, it is always necessary that the

licensee should have notice of the owner's intention to with-

draw the privilege under which he has been acting. The

revocation, though in no way affecting the lawfulness of the

previous operations, will subsequently have the effect of

making any act of the person in cerogation of the owner's

right a trespass, and subject him to liability therefor.w

The notice above mentioned need not of necessity be formal

or particularly expressed, but is sufficient if it in any way

shows an intention to revoke. For example, we may take the

case of a pretending purchaser, who takes possession of the

property under an agreement to pay for the premises by instal-

ments which are to become due at definitely appointed times.

Here the license under which possession is given would be

revoked immediately after default of the licensee in making

the first payment as agreed upon, whether the default be

openly made by refusal after demand, or simply by the non-

compliance. So a conveyance of property in which a license

is claimed will be sufficient notice to the licensee to quit

the premises, without further formalitiesi

License Coupled with Interest.

These licenses are really a combination of two licenses,

each of which have at the same time separate and joint duties

to perform. It exists, for example, in such cases as where

a person is licensed to enter and erect buildings on the land

of another, with a necessarily accompanying license (usually

implied) b-, which he is privileged to remove the building

when the license allowing the use of the land upon which it

is standing is revoked. This condition though somewhat con-

trary to the general rule which requires a defeasible arrange-

ment, is still so equitably within the rule that it should be

given the effect of a license, so as to allow an entrance for

the purpose of removing the building. It may also be seen

that where the particular acts to be performed under a license

have been partly performed by the licensee upon the faith of

the agreement, it may become a contract in equity which will

have the effect of preventing a revocation by the owner at

such an unexpected time as to work great injury upon the

licensee. It might be effected by an estoppel in pals on the

ground of statements and actions on the part of the owner,

which if effectual would not prevent what damages might not

adequately remedy.

It should be kept in mind, however, that in all cases

where particular circumstances do not exist, a license is

revocable at any time at the will of the owner. The revoca-

tion of a license must always result from a conveyance of

the property or an interest therein, if in any way antagonis-

tic to the claim of the licensee.

Interests within the Statute of Frauds.

This branch of the law necessarily involves the question

as to what is and what is not a part of the land. Under this

head, vegetable products are the chief source of litigation

and although the opinions upon the point ably consider the

question, the law upon it is quite unsettled and subject to

variation. These vegetable products are divided into two

classes : those which are produced yearly, after being once

planted, without further attention or cultivation ; and those

which depend upon special yearly planting to bring them into

existence. The first class, (products naturales) are usually

termed perennials, since in these all outward signs of life

disappear annually, while the root and stem survive for years,

during each of which it produces its crops of leaves, &c.

The second class (products industriales) as before said, in-

clude only those which perish annually, and usually result

from special yearly plantings.,

As regards the legal side of the subject, the main

difference in the legal status of the two classes is that the

second class (which results only from special planting and

cultivation) is always subject to execution and sale as

chattels or personal property. The probable origin of this

distinction is that recognized in an early New York Report,

which notes the fact that formerly (that is, during feudal

and early Common Law times) the crops raised were generally

the property of tenants, while the land upon which they were

raised belonged to another -- the lord.

Products of the Soil.

It is quite evident by what reasoning this class of

productions might be brought within the range of the Statute

of Frauds. Here the person planting a crop must have the

use of the land during its growth, and also the incident which

would allow him to enter and remove the crop when it had

fully matured.

A distinction should here be noticed, as laid down in

several decisions, that the interest which is within the

Statute of Frauds only exists as long as the plant is grow-

ing ; and when it can be said to have fairly matured or

ripened, it no longer constitutes an interest in land within

the Statute, but is rather mere personal property, entirely

independent of the land in which they were grown. This rule

was lai. down in an early English case, in a suit to determine

the status of a crop of potatoes which had matured. The

decision was to the effect that the potatoes, though still

in the ground, were no more a part of the land than if they

had just been placed in a box or other vessel and that put in

the ground, upon the reasoning that as soon as they had

matured, the connection and the reason therefor immediately

ceased, so that after that time their position was merely one

of protection or shelter. Although the decisions on this

subject are not as harmonious as might be wished, still these

questions may often be settled by looking at the apparent

intent of the parties, so that occasionally where it appears

as though an interest in land is to pass, it must always

operate to the contrary if that is the intention of the

parties. By looking at them in this light it will be seen,

as held in various decisions, that growing crops may or may

not be the subject of a conveyance.

Exception to General Rule.

These cases necessarily treat of the status of crops

under various conditions and circumstances. In examining

these, we would probably ask the question, whether a contract

for crops must necessarily include an interest in land within

the meaning of the Statute. This question, however, can only

be answered by looking at the character and special provisions

of the agreement under consideration.

An example of this condition of things may be found in

those cases where growing objects or crops are the subject

of the contract, and in which there is an express or implied

condition as to time of transfer, which must be in futurity.

If the subject of the agreement is fruit, the time of transfer

will be maturity ; but in the case of growing trees, only

after the performance of some act of the vendor which is

necessary to change its legal status so that it may be un-

affected by the requirements of the Statute of Frauds.

The first part of the subject has been satisfactorily

settled, and the general holding is to the effect that so

long as the object or subject of the contract is separated

from the soil, on the faith of the contract, title will

immediately vest in the vendee the same as though for any

personal property. But if the subject of the contract is

not severed and changed as agreed by the parties, so that it

may take the form of personalty, no interest is acquired in

the property under the parol agreement, and no satisfaction

can be had except by way of damages. The best method of

viewing this, however, seems to be (if for standing timber),

that the agreement in no way effects an interest in land, but

that by it the vendor agrees for part of a lump sum that he

will separate the property as contemplated by the agreement,

and will then, for the balance, actually transfer the property

which is the subject of the negotiations, the same as

ordinary personalty:-

Particular and Limited Interests.

These interests include all claims incident to title in

land which take the quality of permanency in the shape of

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structures erected thereon, together with any fixtures vhich

may have been permanently annexed to it. All this, though

not a part of the soil naturally, thus becomes of the realty,

and an agreement to convey it cannot be enforced unless the

written requirement of the statute is produced. To this,

however, special exception has been made in the case of a

sale of the structure, accompanied by a license to remove it

from the premises. Here it will be seen that the licensee

has an interest coupled with his privilege to remove, so that

his right to remove cannot be affected by revocation or the

Statute of Frauds,.

It has also been decided that a writing is necessary in

order to enforce a contract for possession of property, on

the ground that it was for an interest in land within the

meaning of the Statute which requires such evidence. This

r ile may also be extended to cover all agreements for exchange

or release between parties.

Mineral Products.

Under the present condition of the law, especially in

the United States, it would appear almost unreasonable to

29

treat these as anything but what is now designated 'land" or

a part thereof, as recited in the only common definition of it.

But under early English law, they were not treated as part

of the property of the person ovming the surface, but were

held as the exclusive property of the Crown. During the

early period of valuable mineral discoveries in America and

the allotment of Government land to settlers, some recogni-

tion of Government right was visible, but it was almost

immediately released, upon the adoption of the present

allodial system. This system recognizes in a grantee absolute

claim to all property within his boundary, whether it be

above or below the surface of the land ; and it seems to be

the only fair and liberal rule which could be adopted.

According to this, then, everything is part of the land which

is permanently attached, and any agreement to transfer title

to it must necessarily be evidenced by the writing which the

Statute of Frauds requires.

Part Performance .

Having now reached the pivotal point, our attention

should be drawn to the interesting question in which the

course of reasoning in acquiring a satisfactory result is

often misunderstood by examiners. The point is, whether the

law regards the part performance of a parol contract for

land an equivalent and substitute for the written memoranda

required by the Statute of Frauds. In answer to this, we may

say that the Statute makes no exception to the general require-

ment, and the law does not recognize it as supplying the

deficiency and giving it the same validity as a contract in

writing. It is often stated that certain acts of part per-

formance take parol contracts out of the Statute, or make

the writing unnecessary, but if the cases upon this are

closely examined it will be seen that the apparent is not the

real meaning of the words used, and that the effect given in

no way depends upon the legality of the contract. The excep-

tional effect which is given is only in a court of equity,

and under the same circumstances as its power was invoked

before the passage of the Statute. It did not act by reason

of any provision contained in the contract, but only as

before the Statute, and which would nov, if not avoided in

equity, aid and protect the very fault which its enactment

was to prevent. The specific ground for its action was to

enforce an estoppel which had been raised under fraudulent

31

statements of the vendor, for which legal damages were entire-

ly inadequate and which equity alone could sufficiently

remedy. Before the enactment of the Statute (as above men-

tioned), the court of equity had often deemed it its duty to

prevent immeasurable damages through fraud, so that subse-

quently, since not specially restricted, it was deemed a

further duty to carry out its real purposes, though it might

at the same time be disregarding the literal and apparent

requirements,. The equity courts then only interfered, as

before the Statute, when the vendee had acted upon the agree-

ment, changed his position upon the faith of it, and in

general so acted that if the vendor was allowed to cancel it

and take his former place he would derive great advantages,

while the vendee would suffer inestimable loss and injury

from the fraud practiced upon him,

A sufficient part performance, to secure equitable aid

in avoiding the literal requirements of the Statute, must

always be such as will give satisfactory evidence of the facts

upon which the acts are based, and at the same time place the

vendee in such a position that money damages cannot replace

him., The first essential is that the vendee must have been

put or let into possession without dissent. But the pos-

session must have been taken or announced by a special and

independent act, since the holding over by a tenant is not a

sufficiently open evidence of the exact contract relations to

allow equitable cognizance. Neither is a part or full pay-

ment of the purchase price admitted to be sufficient part

performance. So, it must appear upon summarizing these facts,

that parol contracts for the sale of land or an interest

therein can only be effective in carrying out the agreement

when (as before the great work of Nottingham) inestimable

injury would result which the court of equity alone could

and would remedyw